In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 16-4257

CHESSIE LOGISTICS COMPANY,

Plaintiff-Appellant,

v.

KRINOS HOLDINGS, INC., et al.,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 13 C 8864 — Jorge L. Alonso, Judge.

____________________

ARGUED JUNE 1, 2017 — DECIDED AUGUST 15, 2017

____________________

Before BAUER, POSNER, and HAMILTON, Circuit Judges.

HAMILTON, Circuit Judge. The plaintiff here is a rail carrier,

Chessie Logistics, which claims it was injured when its neighbor Krinos damaged its railroad tracks. Chessie Logistics sued 

for trespass, negligence, and violation of a federal railroad 

statute. The district court dismissed the statutory claim and 

then granted summary judgment to defendants on Chessie’s 

claims for trespass and negligence. On appeal, Chessie seeks 
2 No. 16-4257

to reinstate its claim under the Interstate Commerce Commission Termination Act of 1995 and its late effort to transform 

its common-law negligence theory into a negligence per se 

theory based on an Illinois statute. This appeal asks us to decide two questions: first, whether § 10903 of the federal Act 

creates an implied right of action, and second, whether Chessie was entitled to change its negligence theory as late as it 

did. We agree with the district court that the answers are both 

no. On appeal, Chessie has not challenged the summary judgment on its common-law claims for trespass and negligence. 

We affirm judgment for defendants.

I. Factual and Procedural Background

Plaintiff Chessie Logistics Company is a railroad authorized to operate just one mile of track in Melrose Park, Illinois, 

though it has apparently been many years since trains have 

actually run on those stretches of track. The defendants are a 

collection of companies that own and operate an industrial facility adjacent to Chessie’s tracks. A spur track and a side track 

run over defendants’ property; Chessie says it has easements 

to use those tracks. The defendants are related companies that 

include Krinos Holdings and Krinos Realty, and we refer to 

all defendants collectively as Krinos. 

Chessie alleges that in 2012 and 2013, Krinos constructed 

a sewer line and did other drainage-management work near 

Chessie’s tracks. Chessie claims that the work buried parts of 

its tracks and created a slope directing runoff onto another 

part of the tracks, damaging them and rendering them impassable. After Chessie told Krinos about the problem, Chessie says, Krinos removed the dirt from one track (damaging 

the track in the process) and put it onto another track and into 

a ditch Chessie needed to manage its drainage. Chessie filed 
No. 16-4257 3

suit in the Northern District of Illinois, asserting both federal 

question and diversity jurisdiction, noting that it is an Illinois 

citizen, all defendants are New York citizens, and the amount 

in controversy exceeds $75,000. See 28 U.S.C. § 1332(a). 

Although Chessie did not need to include its legal theories 

in its complaint, e.g., Title Industry Assurance Co. v. First American Title Insurance Co., 853 F.3d 876, 880 (7th Cir. 2017), its 

complaint laid out three such theories: trespass, negligence, 

and violation of 49 U.S.C. § 10903. Krinos counterclaimed, alleging that Chessie did not have easements to use the spur 

and side tracks and seeking a declaratory judgment, quiet title, and ejectment. Krinos also moved to dismiss Chessie’s 

claim premised on § 10903: that section, it argued, did not create a private right of action. Section 10903 regulates abandonment of rail lines; it requires rail carriers to receive permission 

from the Surface Transportation Board before abandoning 

parts of their lines. The district court agreed that § 10903 did 

not create a private right of action and dismissed that claim. 

After discovery, the parties filed cross-motions for summary judgment. The district court granted Krinos’s motion 

and denied Chessie’s. Chessie Logistics Co. v. Krinos Holdings, 

Inc., No. 13 C 8864, 2016 WL 7034101, at *7 (N.D. Ill. Dec. 2, 

2016). Chessie had not shown that it had easements over some 

of Krinos’s property, the court ruled, and even if it had, an independent contractor, not Krinos, caused the intrusion on 

Chessie’s tracks. Id. at *5–6. The court therefore granted summary judgment against Chessie’s trespass claim, and against 

its negligence claim “to the extent it is based on trespass.” Id.

at *6.

Chessie argued that its negligence claim was not based 

wholly on trespass. In its summary judgment brief, Chessie 
4 No. 16-4257

argued that Krinos was negligent per se. It cited the Illinois 

Adjacent Landowner Excavation Protection Act, which requires landowners to notify adjoining landowners before excavating. 765 Ill. Comp. Stat. 140/1. Krinos had not followed 

this statute, Chessie reasoned, and was therefore negligent 

per se. Krinos argued, and the district court agreed, that Chessie had never made that argument before and that the argument was therefore forfeited. The court granted summary 

judgment against Chessie’s negligence per se claim. Krinos 

dismissed its counterclaims without prejudice, and Chessie 

appealed. 

II. Analysis

A. Appellate Jurisdiction

Before addressing the parties’ merits arguments, we pause 

to consider our jurisdiction. The only route to appellate jurisdiction in this case runs through 28 U.S.C. § 1291, which gives 

us jurisdiction over appeals from district courts’ “final decisions.” With certain exceptions not relevant here, a decision is 

final if it “disposes of all claims against all parties.” Dale v. 

Lappin, 376 F.3d 652, 654 (7th Cir. 2004). Claims dismissed 

without prejudice have not been disposed of, and any resulting judgment is not final unless there is a clear legal bar to the 

claim’s revival. First Health Group Corp. v. BCE Emergis Corp., 

269 F.3d 800, 801 (7th Cir. 2001) (“[D]ismissal of one claim or 

theory without prejudice ... makes the judgment non-final.”); 

Dixon v. Page, 291 F.3d 485, 488 (7th Cir. 2002) (dismissal without prejudice for failure to exhaust prison grievance system’s 

remedies was final because plaintiff was no longer a prisoner 

and could not access that system). 
No. 16-4257 5

Krinos voluntarily dismissed its counterclaims without 

prejudice in the district court. If the story ended there, we 

would not have jurisdiction. India Breweries, Inc. v. Miller Brewing Co., 612 F.3d 651, 657 (7th Cir. 2010); ITOFCA, Inc. v. MegaTrans Logistics, Inc., 235 F.3d 360, 363 (7th Cir. 2000). “The finality rule is only rarely a ‘Swiss cheese.’” India Breweries, 612 

F.3d at 657, quoting Chang v. Baxter Healthcare Corp., 599 F.3d 

728, 732 (7th Cir. 2010). But this appeal “managed to wedge 

through one of its narrowest holes” when Krinos, during oral 

argument, unequivocally agreed that its counterclaims 

should be deemed dismissed with prejudice. See id. Accordingly, we have jurisdiction over Chessie’s appeal and proceed 

to the merits. 

Chessie raises two questions: whether 49 U.S.C. § 10903 

creates a private right of action, and whether it forfeited its 

negligence per se claim. We agree with Krinos and the district 

court that 49 U.S.C. § 10903 creates no private right of action. 

Nothing in the statute’s text implies such a right. We also hold 

that the district court acted within its discretion in refusing to 

hear Chessie’s belated negligence per se claim.

B. Implied Private Right of Action?

The Interstate Commerce Commission Termination Act 

includes 49 U.S.C. § 10903, which regulates the abandonment 

of railroad lines. Subsection (a) provides that a “rail carrier 

providing transportation subject to” the Surface Transportation Board’s jurisdiction “must file an application ... with the 

Board” if it intends to abandon or discontinue service on “any 

part of its railroad lines.” The statute goes on to list the information that an application must include, whom the rail carrier must notify about the application, and how it must do so. 
6 No. 16-4257

§ 10903(a)(2) & (a)(3). The statute gives the Board three options for responding to an application: approval, approval 

with modifications or conditions, or denial. § 10903(e). The 

applying rail carrier may not abandon the line unless the 

Board approves. § 10903(d). 

Other statutory sections provide a variety of ways to enforce the § 10903 approval requirement. If a carrier violates 

the requirement, a person injured as a result can file a complaint with the Board or bring a civil action. 49 U.S.C. 

§ 11704(b), (c)(1). Or the Board can initiate an investigation itself and take “appropriate action to compel compliance.” 

§ 11701(a). The Board’s powers include authority to seek an 

injunction and to order payment of money. §§ 11702(1),

11704(c)(2). The Attorney General can also “bring court proceedings to enforce” the requirement. § 11703. 

Chessie believes that the Act, in addition to providing 

these explicit remedies, implies another remedy: a right, possessed by rail carriers, to sue third parties whose wrongful 

acts force carriers to abandon lines. On Chessie’s reading of 

the statute, Krinos violated § 10903 when its dirt rendered 

Chessie’s tracks inoperable because it forced Chessie to abandon the tracks without Board approval. Chessie argues that it 

can sue Krinos and recover damages for that violation—not 

through § 11704(c)(1), which expressly allows persons injured 

by rail carriers’ violations to sue, but through a cause of action

in favor of a rail carrier implied by § 10903 itself. 

In deciding whether § 10903 or any other federal statute 

creates an implied private right of action, our task is to “interpret the statute ... to determine whether it displays an intent 

to create” both a private right and a private remedy. Alexander 
No. 16-4257 7

v. Sandoval, 532 U.S. 275, 286 (2001). “[R]ights-creating” language is “critical” to that analysis. Id. at 288, quoting Cannon 

v. University of Chicago, 441 U.S. 677, 690 n.13 (1979). We look 

for statutory language that “explicitly confer[s] a right directly on a class of persons” including the plaintiff. Cannon, 

441 U.S. at 690 n.13. That language “must be phrased in terms 

of the persons benefited.” Gonzaga University v. Doe, 536 U.S. 

273, 274 (2002). “Statutes that focus on the person regulated 

rather than the individuals protected create ‘no implication of 

an intent to confer rights on a particular class of persons.’” 

Sandoval, 532 U.S. at 289, quoting California v. Sierra Club, 451 

U.S. 287, 294 (1981). Examples of such language include: “No 

person in the United States shall, on the basis of sex, ... be 

subjected to discrimination under any education program ... 

receiving Federal financial assistance,” Cannon, 441 U.S. at 

681–82, quoting 20 U.S.C. § 1681, and “A system established 

... under section 10803 of this title ... shall ... have access to 

all records of [certain patients],” Indiana Protection & Advocacy 

Services v. Indiana Family & Social Services Administration, 603 

F.3d 365, 375 (7th Cir. 2010), quoting 42 U.S.C. § 10805(a). 

Section 10903 contains no comparable language. Its provisions create obligations on, not rights for, rail carriers and the 

Surface Transportation Board. A rail carrier “must file an application” with the Board before abandoning a line; it “shall” 

notify affected groups of the application; the Board “shall” 

approve or deny the application depending on whether “public convenience and necessity require or permit” the abandonment. There is no unmistakable “focus on any particular class 

of beneficiaries.” The statute only prohibits certain activities 

and mandates others. See Sierra Club, 451 U.S. at 294. Section 

10903 thus “reveals no congressional intent to create a private 

right of action.” Sandoval, 532 U.S. at 289. Moreover, Chapters 
8 No. 16-4257

117 and 119 of the same title provide express methods of enforcing § 10903, suggesting “that Congress intended to preclude others.” Id. at 290.

Chessie does not dispute any of this reasoning that makes 

it so difficult to find implied rights of action. Instead, it asserts 

that without an implied right of action, it will have no remedy 

against Krinos’s wrongdoing. That cannot be consistent with 

congressional intent, Chessie reasons, because Congress 

wanted to ensure the smooth operation of the interstate railroad network—an operation Krinos has impaired. That argument is unpersuasive for two reasons. 

First, if (as here) the statute displays no intent to create a 

private remedy, “courts may not create one, no matter how 

desirable that might be as a policy matter.” Sandoval, 532 U.S.

at 286–87. It is not our “duty ... to be alert to provide such 

remedies as are necessary to make effective” Congress’s purpose. Id. at 287, quoting J.I. Case Co. v. Borak, 377 U.S. 426, 433 

(1964). 

Second, as a general matter, rail carriers already have legal 

remedies against interference with their operations. They are

the same remedies available to every property owner whose 

property is damaged: state-law tort claims. Chessie asserted 

two such claims. When asked why those remedies are inadequate, Chessie explained that to succeed on its chosen state 

law claims, it had to have at least an easement to use the spur 

and side tracks. It apparently does not. Also, Chessie apparently sued the wrong parties because the damage to the tracks 

was done by the work of an independent contractor whom 

Chessie did not sue. The district court granted summary judgment on the trespass and negligent claims as a result, and 

Chessie does not ask us to review those decisions. Chessie’s 
No. 16-4257 9

idiosyncratic problems with its state-law claims do not provide a sound basis for finding an implied right of action, 

which would use congressional silence to work broad 

changes in the relationship between federal and state law affecting railroads.

Finally, to support its argument for an implied right of action, Chessie cites court cases and administrative decisions in 

which the ICC Termination Act has been held to preempt various state laws. See, e.g., Louisiana & Arkansas Railway Co. v. 

Bickham, 602 F. Supp. 383, 384 (M.D. La. 1985) (holding that 

railroad’s servitude could not be extinguished under state 

law, and enjoining servient estate owner’s interference with 

railroad operation), aff’d mem., 775 F.2d 300 (5th Cir. 1985); 

Trustees of the Diocese of Vermont v. State, 496 A.2d 151, 154 (Vt. 

1985) (state courts would not decide whether easement for 

federally regulated railroad line had been abandoned); In re 

Jie Ao, No. FD 35539, 2012 WL 2047726, at *1–2 (S.T.B. June 6, 

2012) (neighbor’s state-law claim for adverse possession of 

railroad right-of-way was preempted by federal law under 49 

U.S.C. § 10501(b); state-law claim for non-exclusive prescriptive easement not preempted). Chessie’s theory is that claims 

it might assert under state law to protect its property rights 

are preempted by federal law, so a federal statute needs to be 

interpreted as implying an alternative set of remedies for railroads against neighboring property owners.

Chessie exaggerates the scope of federal preemption under 49 U.S.C. § 10501(b), which is not as sweeping as Chessie 

contends. As the Surface Transportation Board’s decision in 

Jie Ao shows, federal law preempts state-law efforts against 

railroads to treat railroad rights-of-way as abandoned or lost 
10 No. 16-4257

through adverse possession. 2012 WL 2047726, at *3–6. Chessie offers no authority indicating that a railroad’s state-law 

property rights and remedies as against neighboring property 

owners are preempted by federal law. Moreover, preemption 

and an implied right of action are simply not the same thing. 

Chessie is not asking us to hold that the Act preempts a state 

statute or local ordinance or common-law doctrine. It asks us 

to hold that a section of the Act provides an implied federal

right of action against owners of property adjacent to railroads. We see no legal basis to do so.

C. Negligence Per Se

Krinos believes we should affirm summary judgment on 

Chessie’s negligence per se claim for any of three reasons, 

only the first of which the district court addressed: (1) because 

Chessie forfeited its argument in the district court; (2) because 

no excavation occurred to trigger the Illinois statute; and/or 

(3) because Chessie has no evidence of damages. We agree 

with the first of those arguments, and so affirm the district 

court without reaching the other two.

“The Federal Rules of Civil Procedure do not require a 

plaintiff to plead legal theories.” Vidimos, Inc. v. Laser Lab Ltd., 

99 F.3d 217, 222 (7th Cir. 1996). Accordingly, when a plaintiff 

does plead legal theories, it can later alter those theories. Id.

(“[T]here is no burden on the plaintiff to justify altering its 

original theory.”); CMFG Life Insurance Co. v. RBS Securities, 

Inc., 799 F.3d 729, 743–44 (7th Cir. 2015) (plaintiff did not inappropriately add new claim during summary judgment 

briefing when factual basis was alleged in complaint); Rabé v. 

United Air Lines, Inc., 636 F.3d 866, 872 (7th Cir. 2011) (noting 

that, after reversal of dismissal on pleadings, district court 
No. 16-4257 11

would have supplemental jurisdiction over claims not articulated, but implicit, in complaint). As a general rule, district 

courts should not hold plaintiffs to their earlier legal theories 

unless the changes unfairly harm the defendant or the case’s 

development—for example, by making it “more costly or difficult” to defend the case, or by causing unreasonable delay. 

Vidimos, 99 F.3d at 222; see also Whitaker v. Milwaukee County, 

772 F.3d 802, 808–09 (7th Cir. 2014) (plaintiff should have been 

permitted to proceed on new summary judgment theory that 

recharacterized already-alleged facts and did not offer “any 

unfair surprise”). 

This is not the framework that applies when a plaintiff 

changes its factual theory during summary judgment briefing. 

Plaintiffs do have to raise factual allegations in their complaints. An attempt to alter the factual basis of a claim at summary judgment may amount to an attempt to amend the complaint. Whitaker, 772 F.3d at 808, quoting Shanahan v. City of 

Chicago, 82 F.3d 776, 781 (7th Cir. 1996). 

The district court dismissed Chessie’s claim for two reasons: first because Chessie did not assert negligence per se in 

its complaint and did not allege that Krinos violated Illinois 

law, and second because Chessie forfeited the argument by 

raising it for the first time at summary judgment. We disagree 

with the first reason because Chessie was not required to 

plead its legal theories. E.g., Johnson v. City of Shelby, 574 U.S. 

—, —, 135 S. Ct. 346, 346 (2014) (summarily reversing dismissal of action for failure to identify legal theory in complaint); 

Title Industry, 853 F.3d at 880; Del Marcelle v. Brown County 

Corp., 680 F.3d 887, 909 (7th Cir. 2012) (en banc) (Wood, J., dissenting). 
12 No. 16-4257

We agree with the court’s second rationale, although we 

must emphasize that the governing legal standards are more 

nuanced than Krinos acknowledges. It relies, as the district 

court did, on Clancy v. Office of Foreign Assets Control, 559 F.3d 

595, 606–07 (7th Cir. 2009), and Lewis v. School District #70, 523 

F.3d 730, 741 n.6 (7th Cir. 2008). In both cases, this court noted 

that the plaintiff was arguing on summary judgment a point 

that had not been raised in the complaint and affirmed the 

district court’s refusal to reach that argument with little further explanation. Krinos infers that the cases applied a brightline rule: arguments raised for the first time at summary judgment are forfeited, or at least may be treated that way in the 

district court’s discretion. 

But Clancy and Lewis must be understood alongside cases 

like Whitaker and Vidimos, which both held that district courts 

erred by refusing to consider new theories raised in opposition to summary judgment. See Whitaker, 772 F.3d at 808–09; 

Vidimos, 99 F.3d at 222. Those cases explain the framework 

more thoroughly. When a new argument is made in summary 

judgment briefing, the correct first step is to consider whether 

it changes the complaint’s factual theory, or just the legal theories plaintiff has pursued so far. Whitaker, 772 F.3d at 808. In 

the former situation, the plaintiff may be attempting in effect 

to amend its complaint, and the district court has discretion 

to deny the de facto amendment and to refuse to consider the 

new factual claims. Conner v. Illinois Dep’t of Natural Resources, 

413 F.3d 675, 679 (7th Cir. 2005); Shanahan, 82 F.3d at 781. In 

the latter, the court should consider the consequences of allowing the plaintiff’s new theory. If it would, for example, 

“cause unreasonable delay,” or make it “more costly or difficult” to defend the suit, “the district court can and should 

hold the plaintiff to his original theory.” Vidimos, 99 F.3d at 
No. 16-4257 13

222. The district judge who is managing the case is ordinarily 

in the best position to answer these questions and to exercise 

sound discretion. 

We see no abuse of discretion in the district court’s decision to treat Chessie’s new theory of negligence per se as forfeited because the new argument changed the complaint’s 

factual theory in an important way. Chessie did not allege 

facts supporting a negligence per se claim in its complaint,

and it had not otherwise signaled its pursuit of this theory until after discovery had closed and the parties were briefing 

cross-motions for summary judgment. 

To recover on a negligence per se claim in Illinois, the 

plaintiff must show that the defendant violated a statute and 

that the violation proximately caused an injury “of the type 

the statute or ordinance was intended to protect against.” 

Noyola v. Board of Education of the City of Chicago, 688 N.E.2d 

81, 85 (Ill. 1997). Chessie’s negligence per se theory is based 

on the Illinois Adjacent Landowner Excavation Protection 

Act, a statute that emphasizes a landowner’s right to the “lateral and subjacent support which his land receives from the 

adjoining land.” 765 Ill. Comp. Stat. 140/1. Every provision of 

the Act focuses on providing that support or preventing damage from its loss. For example, on receiving notice of an adjacent excavation, a landowner is entitled either to time to protect his property or to have the excavator protect it. 140/1(1),

(5). Which alternative the owneris entitled to depends on how 

deep the excavation is. Id. Another provision requires excavators to take care to “sustain the adjoining land.” 140/1(3).

Chessie alleged an excavation, and it alleged a lack of notice. But the injury its complaint describes has nothing to do 
14 No. 16-4257

with a loss of “lateral and subjacent support.” 140/1. The complaint makes clear that Chessie does not claim it was injured 

because Krinos removed dirt from the ground; Chessie claims 

it was injured because Krinos dumped dirt on its tracks. A 

claim that it was injured by the excavation would not be

merely “an alternative legal characterization” of the complaint’s facts; it would be a new fact. See Whitaker, 772 F.3d at 

808–09. Introduction of this new factual and legal theory at 

such a late stage of the case would have led inevitably to further discovery, delay, and expense. While a district judge may 

decide that justice calls for tolerance of such consequences, 

the judge also has discretion to deny such a late change in the 

shape and scope of a civil case.

Accordingly, the judgment of the district court is 

AFFIRMED.
No. 16-4257 15

POSNER, Circuit Judge, dissenting. The plaintiff appeals from 

the dismissal by the district judge of a suit in which it charged a 

group of related companies that for simplicity I’ll refer to just as 

“Krinos” with trespass, negligence, and violation of 49 U.S.C. 

§ 10903. There was no trial.

The plaintiff is a tiny railroad in Illinois, authorized by federal 

railroad authorities to operate as a common carrier on a short 

stretch of railroad track (1.006 miles long) in Melrose Park that it

acquired in 2013 but has not yet used. It also owns a siding connected to its track—a railroad siding or spur track is a short section of track used either to store some of the railroad’s rolling 

stock or to enable a train using the main track to get out of the 

way of another train using that track, by switching to the siding.

The plaintiff’s siding crosses land owned by Krinos, and the 

plaintiff argues that the construction of a sewer line by Krinos on 

that land buried the plaintiff’s siding under landfill material, rendering the siding unusable. Other construction activity by Krinos, 

according to the plaintiff, resulted in depositing landfill on the 

plaintiff’s main track, rendering that track unusable as well. 

Krinos tried to remove the landfill, but according to the plaintiff

ended up burying the plaintiff’s siding even deeper.

49 U.S.C. § 10903 authorizes abandonment and discontinuance of rail transportation over a railroad line only if the line‘s 

owner obtains the permission of the STB (Surface Transportation 

Board), the federal agency that succeeded the venerable Interstate 

Commerce Commission. The plaintiff argues that by disrupting its 

use of its track, Krinos has caused an “unauthorized adverse 

abandonment” of the track in violation of section 10903. Although 

the district judge rejected the claim, he did so on the questionable 

ground that the statute does not create a private right of action. I 

don’t see the sense of that. Railroad track can’t be abandoned 

without the permission of the STB, but no one is seeking that 

permission; Krinos is gratuitously interfering with the plaintiff’s 
16 No. 16-4257

use of its own property indeed trying to force abandonment of the 

property, which surely violates section 10903, and who is there 

but the plaintiff to enforce the statute in a case such as this? The 

STB has made clear, moreover, that an adverse-possession claim 

(one plausible characterization of the motive for Krinos’s trespass 

on the plaintiff’s property) to land within a railroad’s right-of-way 

is preempted because the seizure of such property could interfere 

with possible future railroad usage. Jie Ao and Xin Zhou—Petition 

for Declaratory Order, 2012 WL 2047726 (STB June 6, 2012).

So instead of affirming the district court, we should reverse 

and remand.